Как возможна логика в праве?
Texts on logic have been written in different cultures and languages since ancient times. This paper argues that logic is not an innate ability of humans, it is normative and embedded in a special social mechanism of knowledge. This means that logic has a historical nature and develops within the framework of improvement of logical competence.
The present paper examines how Eugenio Bulygin interprets a number of key problems of legal theory of Hans Kelsen. Among such problems are such as normativity of law, nature of legal norms, the distinction between norms and normative propositions, normative consequences of court decisions and their logical foundation, description of law-application in terms of logic, completeness and consistency of law, and so on. The Argentinian legal scholar pays particular attention to separation of the methodological principles of legal positivism in the pure theory of law from the elements of transcendentalism herein, which were taken by Kelsen from Kant’s philosophy. The paper shows the actuality of Eugenio Bulygin’s interpretation and critical analysis for better understanding of pure theory of law in the contemporary legal scholarship.
In the paper, we advocate the claim that the requirement of the logical correctness of the justification of legal decisions, which is the cornerstone of the deductive model of law enforcement, on the one hand, is insufficient, for it provides no formal soundness of legal decisions, and on the other hand, it is too restrictive, because the proof of its formal consistency provides no demonstration of the compatibility and coherence for its conceptual steps of justification. Without abandoning the rational ideal of the logical correctness of the justification of legal decisions and with the help of the artificial “Alice case”, we show that for the reconstruction of the justification as a deductive inference it is necessary and sufficient that the content of the decision — the conclusion of law enforcement reasoning — be compatible with the content of its premises, from which it is inferred. For the constructing of such reasoning, rejection of the incoherent elements is more important than meeting the requirement of the logical correctness. The contribution of E.V. Bulygin to the development of the deductive model of law enforcement, to which our study is devoted, does not exempt it from the epistemic and social limitations.